Australia, Nov. 30 -- Supreme Court of Victoria issued text of the following judgement on Oct. 18:

1 This proceeding concerns the enforcement of costs orders made in favour of the plaintiffs against the second defendant, Mr Giurina on 30 July 2018 in S CI 2018 00168, which were taxed by the Costs Court on 6 December 2018 ('Costs Orders').[1] A warrant of seizure and sale in respect of the Costs Orders has been issued ('Warrant'),[2] but the Sheriff has reported that a search of the Warrant address failed to locate any seizable goods of Mr Giurina.[3]

2. The plaintiffs seek declarations and orders which will enable the Costs Orders to be executed as against the proceeds of the Sheriff's sale of real property located at 120 Elizabeth Street, Geelong West VIC 3218 ('Property'). However, the registered proprietor of the Property is not Mr Giurina. Accordingly, the Warrant is not able to be registered against the Property, and the plaintiffs are not in a position to execute the Costs Orders against the proceeds of sale of the Property absent the Court granting the relief they seek.

3. The registered proprietor of the Property is Carolina Nacinovich, who died on 10 February 2002.[4] The executor of the deceased's estate ('Estate') is Mr Giurina, who obtained probate on 13 September 2002.[5] The Estate is the first defendant in this proceeding. Mr Giurina represented the Estate in person in this proceeding in his capacity as executor of the Estate.

4. It is not contested that Mr Giurina has inherited the Property under the deceased's will. However, despite over 22 years passing since the grant of probate, title to the Property has not been transferred into his name.

5. At the time of the hearing of this proceeding, the Property was in the process of being sold by the Sheriff in execution of a warrant for seizure and sale issued at the request of the Greater Geelong City Council ('Council') for the purpose of enforcing costs orders made in the Council's favour against Mr Giurina in his capacity as executor of the Estate.

6. Mr Giurina has lodged caveats and instituted various proceedings and applications seeking to stop the sale of the Property by the Sheriff. In each of these applications, Mr Giurina claimed that he owns the Property on the basis that the administration of the Estate has been finalised, and the Property is no longer an asset of the Estate.

7. None of Mr Giurina's attempts to stop the sale of the Property have been successful at first instance or on appeal. The Court has declared that Mr Giurina, in his capacity as executor of the Estate, is the proprietor of the Property, and that the Property is affected by the Council's costs orders and associated warrants.[6] The Court has made orders for the removal of caveats lodged by or on behalf of Mr Giurina claiming an interest in the Property, and ordered that no further caveats be lodged without leave of the Court.[7] Mr Giurina's applications for leave to lodge caveats on the Property's title have been refused.[8] Mr Giurina has sought injunctive relief against the Sheriff to prevent the seizure and sale of the Property, which was refused.[9] Neither of Mr Giurina's appeals have been successful.[10]

8. In each case, the Court refused the relief sought by Mr Giurina on the basis, inter alia, that the Property remains an asset of the Estate as Mr Giurina's executorial duties in respect of the Property have not been completed, such that he, as the beneficiary of an unadministered estate, has no legal or equitable interest in the Property. The Court found that the Estate was not yet administered because the Council's costs orders against Mr Giurina in his capacity as executor had not been paid, and the Property has not been transferred into his name.

9. The plaintiffs in this proceeding seek declarations that the proceeds of the Sheriff's sale of the Property are the property of Mr Giurina, such that the Warrant may be executed against the proceeds. The plaintiffs argue that the Estate has been administered, or at least will be administered upon the sale of the Property by the Sheriff, such that Mr Giurina is entitled to the proceeds of sale absolutely.

*Rest of the document and Footnotes can be viewed at: (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2024/710.html)

Disclaimer: Curated by HT Syndication.